Divergent paths: abortion rights in Mexico and the USA
Content warning: this article contains references to sexual abuse, assault and rape.
Abortion rights are following startlingly divergent trajectories in Mexico and the USA. Historically a progressive beacon for women’s movements across the Americas, the USA is currently engulfed in the most powerful regression in half a century. US campaigners may once have viewed Mexico as in need of their help, but now Mexico is part of the ‘green wave’ that, slowly but steadily, is expanding abortion rights across Latin America. Unlike its northern neighbour, Mexico’s trajectory fits a broad global trend towards the elimination of restrictions on abortion. Activists from both countries are working in solidarity across the border, making sure that whatever the future holds, women can get the vital support they need.
As they descended on Washington, DC in January 2022, participants in the ‘March for Life’ anti-choice rally were unusually cheerful. Held every year for almost half a century, the march has often had solemn and even sinister overtones, with participants threatening eternal damnation for doctors who conduct abortions and offering prayers for the souls of aborted foetuses. But this time anti-choice activists feel more optimistic than at any point since they started marching in 1974.
2022 could be the year in which the US Supreme Court sweeps away abortion rights. The highest court of the land will soon issue a decision on a case involving the state of Mississippi. This could weaken or overturn the 1973 landmark Roe v Wade ruling, which forbade states to ban abortion before foetal viability.
The signs are not promising. A politically skewed Supreme Court has so far let stand the most insidious ‘heartbeat law’ ever passed by a state legislature, Texas’s Senate Bill 8 (SB 8): its ban on all abortions after just six weeks of pregnancy amounts to near-total prohibition.
But while the USA is engulfed in a regressive wave, signals of progress come from an unsuspected direction: from south of the US-Mexico border, and specifically from Coahuila, a Mexican state located directly across from Texas.
As SB 8 went into effect in Texas in September 2021, Mexico’s Supreme Court took a decisive step in the opposite direction. In its first ever decision on abortion rights, it ruled unanimously that a Coahuila state law imposing prison terms of up to three years for abortion was unconstitutional.
Strictly speaking, the ruling only applied to Coahuila, and nationwide implementation remains an issue: it will require either legal challenges in each of Mexico’s many states that continue to criminalise abortion, with federal judges urged to follow the precedent of Coahuila, or action by state legislatures to change their laws. But the last few months of 2021 saw further progress, offering hope for women across Mexico.
Mexico: progress, one state at a time
Unlike its northern counterpart, Mexico’s Supreme Court it is not divided along culture-war lines reflecting deeply polarised politics. This means campaigners for abortion rights can view it with some optimism. In the course of 2021, Mexico’s highest court made several crucial, long-considered decisions that could pave the way for the nationwide legalisation of abortion.
The most important of those decisions was the Coahuila judgment, which came on 7 September 2021. Its bottom line was clear: no one can face legal charges for having an abortion. Two days later, the Supreme Court issued another ruling declaring it unconstitutional for state laws to redefine the legal concept of personhood by protecting ‘human life from conception’ – a provision that numerous states had inserted in their constitutions over the past decade, aimed at enabling the criminalisation of abortion.
This second ruling addressed a lawsuit concerning the state of Sinaloa and, again, will not apply automatically to other states, so women’s rights activists set out to work a strategy to challenge similar constitutional clauses in other states.
Soon afterward, on 20 September, the Supreme Court declared invalid the principle of conscientious objection for medical practitioners in the General Health Law, and instructed federal Congress to draw up legislation balancing the right of doctors and nurses to refuse to perform a procedure with the right of pregnant individuals to access a basic health service.
This validated the strategy of women’s rights activists who are trying to make up for the lack of a federal law granting abortion rights by focusing on other pieces of federal legislation, including the General Health Law, which includes risk to physical and emotional health as a cause for abortion, and the General Law on Victims, which states that a pregnant woman’s word suffices for a pregnancy to be deemed the product of rape.
A couple of months earlier, the Supreme Court also ruled as unconstitutional the time limits set by some states for the interruption of pregnancies caused by rape, which is a reason for legal abortion in every Mexican state. The lawsuit that reached the Supreme Court was brought in Chiapas state concerning a 17-year-old girl with cerebral palsy who was raped and whose family realised she was pregnant after the deadline set by the state. While the legal win didn’t help them, the unanimous ruling set an important precedent.
VOICES FROM THE FRONTLINE
Verónica Esparza is a lawyer and researcher at the Information Group on Reproductive Choice (GIRE), a feminist and human rights organisation working to ensure that women and others with the capacity to bear children can exercise their reproductive rights in Mexico. Rebeca Lorea is GIRE’s Public Policy Advocacy Coordinator.
In our country strong stigma still prevails around abortion, based on the idea of motherhood as women’s inevitable fate. This idea continues to permeate all state institutions and laws, and forms the basis for not only the social but also the legal criminalisation of abortion, which particularly affects women and other pregnant persons living in situations of violence, economic marginalisation and lack of access to reproductive information. It also sends the strong message that the state plays a role in reproductive decisions that should belong to the private sphere.
In most of Mexico, as in Latin America, voluntary abortion is still considered a crime. From the 1970s onwards, Mexican feminists have raised the issue of access to abortion as a matter of social justice and public health and as a democratic aspiration. Despite the forcefulness of their arguments, it took 35 years to achieve the decriminalisation of abortion during the first trimester of pregnancy, and only in Mexico City. That victory was replicated more than a decade later in three states: Oaxaca, Hidalgo and Veracruz.
In the short term, achieving decriminalisation at the national level is complicated because each of the 32 federal entities has its own penal code, so it would still be necessary for each state to reform its penal and health legislation to stop considering abortion as a crime and then recognise it as a health service and provide public institutions with the human and financial resources to ensure access.
In practice, in recent years both the narrative and the reality of abortion in Mexico have changed due to the increasing prevalence of abortion pills. A few decades ago, clandestine abortion – that is, abortion performed outside the law – was considered to be synonymous with unsafe abortion, but this is no longer the case. Now there are safe abortion support networks, and in contexts of legal restriction, during the first weeks of pregnancy women and others with the capacity to gestate are able to have an abortion with pills at home, without the need to resort to a health institution.
This is an edited extract of our conversation with Verónica Esparza and Rebeca Lorea. Read the full interview here.
Mexico is on the right path, but still a long way away from nationwide legal abortion. When the Supreme Court issued its landmark ruling on Coahuila, only four federal entities allowed abortion on demand up to 12 weeks into pregnancy. Mexico City pioneered the trend in 2007, and only in 2019 did Oaxaca follow. But change has recently accelerated, with two additional states, Hidalgo and Veracruz, legalising abortion in 2021 before the Coahuila ruling and two more, Baja California and Colima, doing so since.
In other states abortion is legal on various grounds: in addition to cases of rape, some allow it when there’s risk to the life or health of the pregnant person or foetal malformations. However, only two states recognise one of the most common reasons for abortion: economic hardship.
In practice, legal exceptions are often not considered and despite the development of abortion pills thousands of women still turn towards unsafe methods that can cost them their lives or leave them in hospital, where they are humiliated, mistreated and criminalised. While the proportion of abortion cases that go to court and result in convictions is very low, hundreds of women – inevitably from poorer, less educated and rural backgrounds – have received prison sentences over the years. Even in Mexico City, interruptions of pregnancy after 12 weeks are punishable by three to six months in prison.
A global trend towards progress
According to the Center for Reproductive Rights, the vast majority of countries that have changed their national abortion laws in the past couple of decades have made them less restrictive, not more.
Mexico is attuned to the spirit of the times; its northern neighbour is not. Within the Americas, the USA at the federal level still has some of the least restrictive legislation, but several of its states have gone to desperate lengths to restrict access. Meanwhile many Latin American countries have been swept by the ‘green tide’ that originated in Argentina, increasingly liberalising abortion laws.
Before the 2010s, abortion was legal in only one Latin American country, Cuba. It was legalised in Uruguay in 2012, and eight years later in Argentina.
Argentina’s decision looks like a tipping point. Colombia‘s Constitutional Court is currently debating total decriminalisation. Other countries, such as Chile and Ecuador, have made abortion legal on some grounds, such as rape. As systems that allow legal abortion in ‘exceptional’ cases that need to be argued and evidenced usually fail women, women’s rights organisations continue to work on the understanding that limited liberalisation must only mark the journey to full legalisation.
ABORTION RIGHTS: GLOBAL TRENDS
Source: Center for Reproductive Rights
USA: regression against the tide
The US right wing is determined to travel in the other direction. 2021 saw an all-time record number of state-level abortion restrictions enacted in the USA: 108 across 19 states. According to the Guttmacher Institute, 1,338 abortion restrictions have been introduced since abortion became legal in 1973 – 44 per cent of them in the past decade.
Last year, states enacted abortion bans that violate the US Constitution in the hope that the Supreme Court will soon reverse Roe v Wade, after which new restrictions will automatically kick in. In a four-day span in April, 28 new restrictions were signed into law in seven states. The only thing holding back a vast loss of rights is the uncertain survival of Roe v Wade.
In recent years, hardcore anti-rights groups have even started pushing for the application of murder laws to prosecute women who have abortions – and gained increasing legislative influence in states such as Arizona, Oklahoma and Texas. Following Trump’s defeat in 2019, many of these organisations also pivoted towards voter suppression activism. They’ve also successfully hijacked state institutions to sow disinformation on sexual and reproductive health issues across the USA.
Among the abortion bans introduced in 2021 are South Dakota‘s ban on abortion of foetuses with Down syndrome and – the most damaging so far – Texas’s SB 8.
Let the irony sink in: Texas is the state the pregnant woman identified as ‘Jane Roe’ was from. In 1969, with the support of a pro-rights group, she filed a lawsuit against the local district attorney, Wade, on the basis that Texas laws that stopped her getting an abortion were unconstitutional. This is where it all started, and many fear this is where it will end.
Texas is the so-called ‘pro-life’ state that continues to use the death penalty and enable the free circulation of guns that fuel an epidemic of mass shootings. It is on the frontlines of the battle to ban narratives about race, gender and equality from school curriculums and libraries – to the point of arguing that ‘opposing’ views must be provided when discussing the Holocaust. The state is leading the way in voter suppression and electoral manipulation through state-level laws: of 262 such bills introduced in 2021, 59 were in Texas. The state is also home to a tactic that first succeeded in 2019 and subsequently spread: anti-rights groups have hijacked local councils to have them outlaw abortion by city ordinance and declare cities ‘sanctuaries for the unborn’.
It’s clear why this is happening in Texas. Politics are turning right in reaction to demographic changes that are taking the electorate leftward. Ultraconservative Republicans know their days in the majority are numbered and are trying to galvanise hardcore support, resist change for as long as possible and lock in as many regressive laws as they can.
Texas: legal innovation at the service of anti-rights backlash
Signed into law in May 2021, SB 8 bans abortion after a heartbeat can be detected in the foetus. Since there is no real heart, there is no heartbeat, but rather an electric pulse that can be identified at about six weeks into pregnancy, at which point most women do not know they are pregnant. This makes SB 8 a near-total ban. It offers no exceptions, even in cases of incest or rape.
As the Supreme Court did not act on requests to block it, SB 8 went into effect on 1 September 2021. A week later, the federal government sued the Texas government on the grounds that the new law was ‘clearly unconstitutional’. The Justice Department said it would use federal law to give protection to people seeking to access or provide reproductive health services.
In early October, a federal judge issued an order suspending SB 8 on the basis that it represented an ‘offensive deprivation’ of a constitutional right. But just two days later a federal appeals court allowed Texas to resume its implementation. And in a further decision in December, the Supreme Court again allowed it to remain in effect.
While other state-level ‘heartbeat laws’ have been passed, this is the first to go into effect, and the reason lies in a clever legal innovation: it isn’t the job of Texas state officials to enforce SB 8; instead this is outsourced to anti-abortion vigilantes.
When the Supreme Court rules that a state law is unconstitutional, what it really does is block state officials from enforcing it. But Texan legislators found a way to tie the hands of the Supreme Court – and found a majority of Supreme Court Justices quite willing to have their hands tied.
Under SB 8, anyone, anywhere, may file a lawsuit in Texas against anyone – except the pregnant woman herself – who provides any help for someone to get an abortion. Even family members who help a woman travel to another state to have an abortion can be sued. And the law provides a juicy incentive: anyone bringing a lawsuit leading to successful prosecution will receive US$10,000. It encourages people to see women seeking abortions as opportunities for bounty.
These unique provisions are broadly rejected by the public: a poll found that 70 per cent of Americans disapprove of making citizens rather than government prosecutors enforce the law and 81 per cent disapprove of giving financial incentives.
But despite broad public disapproval, SB 8 is working as intended: since it went into effect, it has prevented an estimated 85 per cent of the abortions that would normally happen in Texas. It simply made it too risky for abortion providers, many of which could eventually shut down.
Need has not declined, as shown by the fact that abortion clinics in neighbouring states were immediately flooded with requests from people in Texas – at least the ones who can afford to travel. But an imitation effect could further narrow people’s options. A copycat bill was soon introduced in Florida, and another came in Ohio.
It seems the best option for restoring abortion rights in Texas would be for a clinic to break the law to attract a lawsuit. In mid-September, Doctor Alain Braid volunteered to get sued as he published an op-ed saying he had performed an abortion for a woman beyond the six-week limit. Anti-choice organisations called it a ‘stunt’ and didn’t fall for it, but Broad was sued by three citizens. His may become the test case for the ban’s constitutionality.
The end of an era?
But SB 8 may not be how Roe v Wade ends. For the Supreme Court, upholding it may be more trouble than it’s worth, since it will attract countless lawsuits. A bigger threat is now coming from Mississippi.
In 2018, Mississippi’s Republican-dominated legislature passed a law that makes most abortions, including in cases of rape or incest, illegal after 15 weeks of pregnancy. This is about two months before the threshold established by Roe v Wade and other court decisions.
The law has not gone into effect because it was challenged by Mississippi’s single remaining abortion provider, Jackson Women’s Health Organization, known as the Pink House. Due to several state laws, Jackson no longer provides abortions after 16 weeks; however, it provided evidence that there is no foetal viability at 15 weeks.
A federal appellate court blocked the enforcement of the law, landing the case in the Supreme Court in 2020. The timing was troubling. Trump’s third Supreme Court appointee, Christian ultraconservative Amy Coney Barrett, had been hastily confirmed just before Trump lost the election, replacing the late liberal icon Ruth Bader Ginsburg.
Trump’s promise to his hard-right supporters to stack the court to overturn Roe v Wade was coming to pass. Now for the first time in 30 years, the Supreme Court has accepted to hear a case explicitly petitioning for this, as well as to overturn Planned Parenthood v Casey (1992), which established that states could not place any ‘undue burden’ on women seeking abortions before foetal viability.
On 1 December 2021, with hundreds of protesters from both sides gathered outside, this highly politicised Supreme Court with its six-to-three conservative majority started hearing oral arguments to make a decision on the future of legal abortion in the USA. Opponents of abortion had worked their way towards this for almost 50 years.
Undue burdens and innovations
Over the past five decades anti-choice groups have focused on eroding Roe v Wade in practice by finding ways to impose additional burdens, making it abundantly clear that legality does not mean access.
Restrictions imposed include requirements such as mandatory waiting periods and counselling, repeated consultations, unnecessary ultrasounds, doctor’s approvals and parental consent as well as conscientious objection clauses for medical professionals and even medical institutions. On top of unrelenting harassment outside abortion clinics, unnecessary requirements imposed on medical providers have drastically reduced available options, turning countless cities into ‘abortion deserts’.
Simultaneously, a movement encouraging abstinence as the sole form of birth control has risen in public school systems. Those disproportionately affected are poor women and minorities, particularly Black and Latina women. Those without economic means have found it increasingly difficult to find a place where abortion is still legal and available.
More encouragingly, an alternative has made its entrance: medication abortion. Used together, two drugs – mifepristone and misoprostol – can safely end a first-trimester pregnancy. Although a prescription is needed to purchase the medication legally, the procedure is simple and can be self-managed.
For many women’s rights organisations, this is the future of abortion – but for the time being, many women don’t know this is an option, or have no idea how to get the pills. That is why pro-choice groups are trying to kickstart a conversation about it, as reflected in the protest outside the Supreme Court on 1 December 2021, when four activists staged a performance in which they each publicly swallowed a mifepristone pill.
Predictably, anti-rights groups are now working hard to limit access to medication abortion: in 2021 alone, eight states introduced unnecessary restrictions such as mandating in-person consultations and banning the mailing of pills.
A decision on the Mississippi law is expected in June or July 2022. There are three theoretically possible outcomes. First, but extremely unlikely given its political make-up, the Supreme Court could strike down the Mississippi law and let Roe v Wade stand. Second, it could rule that the Mississippi law does not place an ‘undue burden’ on women seeking an abortion, letting Roe v Wade stand in principle but undermining it drastically in practice. Third, it could seize the opportunity to overturn Roe v Wade entirely.
Everything points in a regressive direction. Analysis by the Guttmacher Institute shows that if the US Supreme Court overturns Roe v Wade, 26 states are certain or likely to ban abortion, forcing those who can afford it to travel ever greater distances to reach the nearest out-of-state clinic – and those who can’t to carry unwanted pregnancies to term.
Even if Roe v Wade is weakened rather than fully overturned, the consequences would be devastating. It would mark a further ratcheting down of rights and give the green light for renewed efforts to introduce obstacles, increase restrictions and lower limits – all towards the end game of a total ban.
VOICES FROM THE FRONTLINE
Caroline Duble is the Political Director of Avow – Unapologetic Abortion Advocacy, a civil society organisation that works to secure unrestricted abortion access for all people in Texas.
Extremist politicians have been hellbent on stigmatising and banning abortion for decades. But we will continue to fight unapologetically for unrestricted abortion access for all Texans, for any reason. Abortion is essential healthcare, and it should be readily accessible to anyone in our state who needs or wants one. We’re leading this movement and changing the culture with an unapologetic abortion-forward mindset, through community-building, education and political advocacy.
We work to portray abortion in a positive light because abortion is safe, common and normal, although you wouldn’t know that because abortion stigma keeps people from sharing their stories. We are committed to changing the conversation about abortion to reflect that reality. For too long, anti-abortion extremists have dictated how we’re allowed to talk about abortion; by spreading lies and medical inaccuracies they have controlled the narrative so much that even abortion rights supporters don’t feel comfortable saying the word and prefer to use euphemisms such as ‘women’s rights’, ‘reproductive health’ and ‘choice’. This has allowed stigma to permeate abortion care and ultimately shame people who have had abortions, and feeds into a narrative about ‘good’ and ‘bad’ abortions. But we refuse to judge a person’s reason for getting an abortion, and instead support them once they have made their decision.
Looking ahead to the 2022 midterm elections, Avow is preparing to hold anti-abortion legislators accountable through digital ads, on the ground organising and voter mobilisation. We are also pushing the federal government to do more to protect abortion rights by passing the Women’s Health Protection Act, which seeks to establish a statutory right for healthcare providers to provide abortion care, and a corresponding right for their patients to receive that care, free from medically unnecessary restriction.
We are also calling on them to repeal the racist Hyde Amendment, a 1980 legislative provision barring the use of federal funds to pay for abortion. We will also continue our work to bust abortion stigma by helping people talk about abortion openly and what access means to them.
This is an edited extract of our conversation with Caroline Duble. Read the full interview here.
Only one possible direction: forward
The attack on abortion rights is a profoundly political project. Following Roe v Wade, a matter that was previously almost absent from politics was turned into a core issue all US politicians are forced to take a stance on. Even moderate religious groups that once saw abortion as a private matter now campaign passionately against it. This shift was driven by a vocal minority that made abortion their key organising issue and made their support for Republican politicians conditional on strict opposition to abortion.
Polls consistently show that a substantial majority of US citizens back abortion rights – about 69 per cent, according to a CNN poll, and up to two-thirds according to an Economist survey. But an outspoken and well-resourced minority is successfully imposing its views over those of the majority.
In response to these anti-rights advances, pro-choice activism has become more assertive. On 2 October 2021 a massive Women’s March, led by a coalition of more than 120 groups, mobilised in Washington DC and in hundreds of cities across the USA – and for the first time it openly called itself a ‘rally for abortion justice’.
Abortion is essential healthcare, and it should be readily accessible to anyone who needs or wants one. We’re changing the culture with an unapologetic abortion-forward mindset, through community-building, education and political advocacy.
While for decades progressive groups typically stayed out of the way of the March for Life, in January 2022 some felt compelled to voice their support for Roe v Wade – notably Catholics for Choice, which claimed visibility by projecting abortion rights messages on the side of the USA’s largest Roman Catholic church while anti-abortion marchers congregated inside.
There has also been a state-level response. Anticipating a negative Supreme Court ruling, 10 states moved to codify abortion rights in their constitutions. These will remain in place regardless of the Supreme Court ruling. New Jersey did so as recently as January 2022, and more are expected to follow.
Fortunately, there seems to be no going back to life before Roe v Wade, even if it is overturned. The simplicity and safety of abortion through medication is a key change. Under the pandemic, many states allowed medical videocalls and in those that did not explicitly mandate an in-person consultation, the Food and Drug Administration temporarily allowed abortion pills to be delivered by mail. Although the Supreme Court later complied with the Trump administration’s request to reinstate pre-pandemic rules, the trend towards medication abortion was boosted.
Both the narrative and the reality of abortion in Mexico have changed due to the increasing prevalence of abortion pills. A few decades ago, clandestine abortion was considered to be synonymous with unsafe abortion, but this is no longer the case.
In every state where it is allowed, there are online services that distribute abortion pills. Several state legislatures – starting inevitably with Texas – are pushing bills to make it a criminal offence to mail abortion pills within state. But online abortion pill services can be hard to track. There are already many organisations across the USA helping people access abortion pills by mail, regardless of the laws in place in their states.
US feminist solidarity networks are learning fast from their Latin American counterparts. With or without a prescription, abortion pills are relatively easy to get in pharmacies in many countries in the region where abortion is illegal, because women have organised and set up telephone hotlines to provide information, secure networks to ensure access and support systems to accompany those going through the process. In Texas, some groups rely on transnational solidarity networks to receive the medication from across the southern border.
The ongoing battle in the USA is crucial not just for US women but across the Americas and worldwide, because of the country’s regional and global influence and its power to set norms and standards. Mexican activists know this. While pushing to change domestic legislation until abortion rights are enshrined nationwide, they keep working to ensure effective access and increase capacity wherever abortion is legal, and to animate underground networks to provide support and access where it is not. They continue mailing and carrying abortion pills across the border to help those in most need, including undocumented migrants in the USA.
Solidarity actions remain vital at a time when, driven by political calculation, the USA is going one way while the rest of the world is going the other. The ongoing right-wing backlash, the strongest since Roe v Wade, offers yet another reminder of the fragility of long-established rights. But the vitality of the response to that backlash brings hope that no matter the ferocity of the assault, the fundamentals can hold.
OUR CALLS FOR ACTION
The US Supreme Court should keep the substance of Roe v Wade alive rather than taking a historical decision at a time when its impartiality is in question.
Mexican state-level courts and legislatures should act on the precedent established in the Coahuila ruling and remove restrictions on abortion to advance towards nationwide legalisation.
Mexican and US abortion rights campaigners should deepen their collaboration to share support and resistance strategies and boost the movement across the region.
Cover photo by Alex Wong/Getty Images